Lawyers line up for another recount battle

Listen to this article

The legal recount battle between Democrat Mark Dayton and Republican Tom Emmer is off and running.

Last week attorneys for Emmer sued election officials in Pine and St. Louis counties seeking a court injunction to force the counties to turn over various voting records and data requested by Emmer’s camp.  (Yesterday Emmer’s campaign announced it has reached an agreement with the elections officials.)

Minneapolis attorney Eric Magnuson filed the complaint. Magnuson, the former chief justice of the Minnesota Supreme Court, knows recounts. While serving as chief justice, he was a member of the canvassing board making determinations on the ballots cast in the historically close U.S. Senate election between Norm Coleman and Al Franken.

On Nov. 3, attorneys for Emmer sent a letter to Pine and St. Louis counties requesting “machine tapes, summary statements, ballot security information and revisions to reported election night results.”  The following day Emmer’s attorneys requested, “absentee ballot information, voter registration information, names of election judges, incident reports and information provided to or for the benefit of the Dayton for Governor campaign.”

When the requests were not met by Friday Nov. 12, Emmer sued under the state Data Practices Act and requested the information be turned over in five days. Attorneys said by failing to produce the documents the Emmer camp was being “irreparably harmed” in its ability to prepare for the recount.

“Without the requested data, Emmer for Governor is unable to ensure the security of the voted ballots, verify that validly cast ballots were counted or confirm that votes in the gubernatorial race were properly tabulated. Nor is it possible for Emmer for Governor to gather additional evidence that might be necessary to establish a ballot’s validity,” Magnuson wrote.

The counties were working with Emmer’s camp last week to turn over the information and avoid winding up in court.

Election lawyers at work

Both campaigns have hired both state and national recount attorneys and are actively recruiting volunteer lawyers and are fundraising to pay the expected legal costs. So what do all these attorneys do? Recount law is a small practice area, but in the end it is no different than most legal matters: The attorneys advocate for their clients.

“We are getting ready for the manual recount phase right now,” said Dayton attorney David Lillehaug. “We will have teams of lawyers ready to deal with issues that come up at the different recount locations across the state.”

Emmer attorney Tony Trimble said amassing the recount team was similar to starting a small business.

“You learn how to get things done quickly and efficiently, how to respond to the legal matters, how to use your volunteers and your political team and then how to recruit a good team,” Trimble said.

In the days after the Nov. 2 election, attorneys fanned out to county canvassing boards while the results were certified to watch for irregularities and questionable counting. The second phase of the recount will begin Nov. 23 with the state canvassing board meeting to determine whether Dayton’s margin of victory falls within the number that would trigger an automatic recount. At that meeting, attorneys for both sides will argue in favor of rules the board will follow during the recount. If the margin is narrow enough, the manual recount starts Nov. 29.

Dayton’ s lead over Emmer is holding steady at around 8,700 votes. Starting the 29^th, lawyers from both sides will have the opportunity to review and challenge the estimated 2.1 million ballots. During the challenge phase, attorneys for both sides will set aside questionable ballots and attempt to convince the State Canvassing Board what the “intent of the voter” was. To do so, attorneys will argue over ovals, lines, crossed out ovals and other stray marks on the ballot to convince the board that the voter meant to vote for their candidate. They will also argue over absentee ballots and ballot eligibility.

Not a science

It’s far from an exact science and it’s time consuming.  In 2008 for example, Franken challenged 494 ballots and Coleman challenged 1,069.

Lillehaug is heavily involved in the Minnesota DFL party and worked on the 2008 recount for Sen. Franken. He said he learned a great deal two years ago. Minneapolis attorney Charlie Nauen is also on the Dayton recount team.

“I underestimated the amount of work that would be involved,” he said. “It was like being in trial for five months. From the night of the election to the end of the trial in March, I had two days off: Thanksgiving and Christmas. I worked from 7:30 in the morning until 10:30 at night almost every day.”

Trimble worked for the Coleman recount team in 2008 and for U.S. Rep. Mark Kennedy in 2000. Kennedy beat incumbent David Minge by a margin of 155 votes, but not before a hand recount and a trial.

Trimble said lawyers can’t “win” a recount, but in close elections, a knowledge of the law and shrewd decision making is vital.

“In a sense you are looking for anything and everything that can give you an advantage,” he explained. “That could be not enough ballots or excess ballots in some precincts or duplicate ballots — any obvious irregularities that could affect the outcome. And we take a full scale approach to determine how to respond.”

Lillehaug said there are many reasons why the 2010 recount will not drag on as long as 2008. To begin with Minnesota voters and election officials learned a lot two years ago. He expects people were more careful when filling out their ballots and said the absentee voting requirements are much clearer today. In addition, there are many hundred thousand fewer ballots to count this time around.

He also likes his position better than two years ago.

“There is considerably less stress when you are ahead by 8,000 votes than when you are behind by 200. We will work very hard to make sure the will of the people is recognized,” he said.

Many strategies

Trimble said the Emmer campaign has been preparing  a litany of possible strategies and that after three recounts he is more knowledgeable about the law and how to resolve legal issues as they come up. This year, unlike in 2008, the absentee ballots will not decide the contest – and that’s a good thing in Trimble’s estimation.

“That wasn’t a fruitful place for us. We were playing defense and they were playing offense. It didn’t matter how many ballots we opened up,” he said. “We are working on a number of different avenues and we will bring to the floor the organizational and logistical work we have done since election day.”